Filed 8/31/17 In re David H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Johnson[1] and Robert J. Trentacosta, Judges. Affirmed in part and reversed in part.

Denise M. Rudasill, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General for Plaintiff and Respondent.

A petition was filed in the juvenile court alleging 17-year-old David H. (1) committed petty theft, (2) possessed marking tools with the intent to commit vandalism or graffiti, and (3) possessed drug/tobacco paraphernalia. (Pen. Code, §§ 484, 594.2, subd. (a), 308, subd. (b).) At the close of the prosecution's case, the court (Judge Ronald Johnson) denied a defense motion to dismiss the charges. (Welf. & Inst. Code, § 701.1 (§ 701.1).) At the end of the adjudication hearing, Judge Johnson made true findings on each of the counts. At the disposition hearing, Judge Robert Trentacosta declared David a ward and placed him on probation at home under the Probation Department's supervision.

David challenges the sufficiency of the evidence on the first two counts (petty theft and graffiti). On the petty theft count, we determine the court's findings were supported by the evidence. On the graffiti count, we determine the court erred in denying David's section 701.1 motion because the prosecution did not present evidence showing David intended to use the marking tools to commit graffiti or vandalism, a necessary element of the crime. (Pen. Code, § 594.2, subd. (a).) Accordingly, we affirm the judgment on the petty theft and drug/tobacco-paraphernalia counts, but reverse on the graffiti count.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

Late one April 2016 night, at about 10:00 or 10:30, 52-year-old B was in the second story of his home looking out the window. B noticed two juveniles in the middle of the street about 150 to 175 feet away. One boy wore a red jersey-type shirt and was riding a scooter with wheels that lit up when they rolled; the other wore a dark hoodie and had a black backpack. The minor in the dark hoodie walked up to a car, opened the passenger side door, climbed in, looked around, and then got out and closed the car door. B saw him run over to his scooter-riding companion to show him something that lit up in his hand, which appeared to be a cell phone. B watched as the two juveniles then walked up the street to B's wife's car. When the hooded minor opened the car door, B yelled out the window at them. The two boys fled.

Shortly after, B reported the crime to the police, stating the suspects appeared to be two juveniles, one on a scooter and one wearing a dark (gray or black) hoodie with a black backpack. B said the suspects were about his height. A few minutes later, an officer noticed a juvenile (David) in a nearby parking lot wearing a dark gray hoodie and a black backpack. David was walking briskly away from the officer in an "unusual[ly]" fast manner. The officer also noticed some nearby bushes and trees rustling as if someone was shaking them or running through them.

When the police officer stopped David, David identified himself and indicated his home was about five miles away. The officer searched David's backpack and found two spray-paint cans, a felt-tip ("Sharpie") marker, a red T-shirt, David's cell phone that did not work, a lighter, and a pipe. The police officers also found an additional backpack on the ground with various property items stacked on top of it. The officer checked the immediate area, but did not find any additional suspects or signs of vandalism or graffiti.

The officers held David near the scene until B was brought to participate in a curbside show-up. Police officers admonished B and told him not to "jump to conclusions." B remained in the police car, and an officer illuminated David with the vehicle's headlights. David stood 15 to 20 feet away, and B identified David as the juvenile who entered the vehicle. B said David "matched" the suspect as he had the same body type ("thin"), the same clothing, and the same dark, flat backpack.

At some point later that evening, police interviewed the car owner whose cell phone was missing. The owner had left his work phone in the car with his car door unlocked. When the owner learned about the incident, he went to check his car and saw that his work phone was missing. Police never recovered the phone.

At trial, B testified that on the night of the crime he was satisfied he identified the right person. He denied he would have identified any person who had the same color hoodie, explaining he recognized the suspect as the perpetrator and "it was only a few minutes from the time I saw the individual to the time I was taken there to look again."

At the end of the prosecution case, David's counsel moved to dismiss the charges under section 701.1. The court denied the motion, finding sufficient evidence to support each count.

Defense

David testified in his own defense. He denied he was involved in the theft, or that he intended to use the materials in his backpack for vandalism or graffiti purposes. He said earlier that day he had taken a bus to a skate park, which he said was "pretty far" from his home. He then spent time "[h]anging out" with his friend Jordan at the park. At some point, David and Jordan went to Jordan's home near the park, and then sometime after 10:00 p.m. David started to walk home because the buses had stopped running and he did not want to wake his mom. When David reached a hospital parking lot, he saw some males and asked them what time it was, and he was told it was 10:45 p.m.

Shortly after, the police officer made contact with David and arrested him. When asked at trial why he turned into the parking lot on his way home, David said "t takes too long . . . I didn't want to walk on the streets." When asked at trial why he had a Sharpie pen on him, he said "I don't know, to be honest." When asked at trial about the spray paint, he said "I was spray-painting my friend's skateboard" at the nearby skate park. He did not tell this to the officers, and instead he told the officers that the spray cans were his brother's equipment.

[i]Court's Ruling

At the conclusion of the evidence and arguments, Judge Johnson made true findings on each of the counts beyond a reasonable doubt. As to the petty theft count, the court said: "t is clear that [witness B] . . . did not want to be present, and the better testimony is his testimony when he identified the minor at the time of the apprehension. And at that time, he indicated, and I quote, 'I would say that's him, yeah, yeah.' And that was the identification of the minor on the night in question . . . ." As to the graffiti count, the court stated: "[T]he minor was in possession of aerosol paint can[s] and a felt-tip marker with the intent to utilize those items for the purposes of vandalism or graffiti. There was no legitimate reason for him to have them in his possession. And he clearly indicated that by concocting the story regarding painting of a friend's skateboard."

I. [i]Substantial Evidence Review Standard

The standard of review for a challenge to the sufficiency of the evidence in a juvenile adjudication is the same as the standard applied in criminal proceedings. (In re Kyle T. (2017) 9 Cal.App.5th 707, 712.) "In determining the sufficiency of the evidence, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] '[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (In re Z.A. (2012) 207 Cal.App.4th 1401, 1424-1425.) "When the circumstances reasonably justify the [juvenile court's] findings, a reviewing court's opinion that the circumstances might also be reasonably reconciled with contrary findings does not warrant reversal of the judgment." (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.)

II. Petty Theft

David contends the evidence was insufficient to show he was the person who took the cell phone from the vehicle. The argument is without merit because an eyewitness identified David as the person who entered the vehicles and picked up an item that resembled a cell phone. B saw David commit the crime, and was able to identify David through his approximate age, body type, clothing, and backpack. A single witness's testimony is sufficient to support a factual finding. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)

" 'To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.' " (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Essentially, " 'the evidence of identity must be so weak as to constitute practically no evidence at all.' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 521 (Mohamed).)

B's identification of David was neither physically impossible nor inherently improbable. B witnessed the entire theft. He told police the suspect was a juvenile who was wearing a dark hoodie and a black backpack. Police stopped David far from David's home and a short distance from where the theft took place. David matched the description the officers had been given. After being admonished not to "jump to conclusions," B participated in a curbside show-up within 20 to 30 minutes of the crime and identified David as the thief. He saw that David wore the same clothing and backpack as the thief he watched earlier that evening. Since the identification was so close in time to the crime, B's memory would have been fresh. At the time, B was confident that he had identified the correct suspect. Additionally, the evidence showed that another person (who was not immediately apprehended) appeared to be nearby in the bushes. Considered together, these facts amounted to substantial evidence from which the juvenile court could reasonably conclude David was the cell phone thief.

In challenging the identification, David mainly reargues the weight of the evidence. For example, he notes that witness B was tired; unable to describe any distinctive characteristics of the two individuals; did not give police an estimated weight of the individuals; and did not provide a description of the perpetrator's ethnicity. However, the court considered these factors, and found that they were insufficient to undermine B's identification. We are bound by this factual finding. (In re Gustavo M., supra, 214 Cal.App.3d at p. 1497; see People v. Hovarter (2008) 44 Cal.4th 983, 996-997; People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)

Additionally, contrary to David's arguments, a witness does not need to see a person's face to provide an adequate identification. (Mohamed, supra, 201 Cal.App.4th at p. 521; People v. Lindsay (1964) 227 Cal.App.2d 482, 494; People v. Loar (1958) 165 Cal.App.2d 765, 773.) Identity " 'may be established by proof of any peculiarities of size, appearance, similarity of voice, features or clothing.' " (Mohamed, at p. 522.) David cites three cases in which the court upheld an identification based on facts that included more than the defendant's clothing. (Mohamed, supra, 201 Cal.App.4th 515; People v. Lindsay, supra, 227 Cal.App.2d 482; People v. James (1963) 218 Cal.App.2d 166.) However, there is nothing in these decisions reflecting the courts were intending to establish a minimum quantum of proof necessary to prove identity. On a substantial evidence review, each case must be evaluated on its own facts.

David argues B's identification was not credible because the curbside show-up was improperly suggestive. However, B was admonished not to jump to conclusions, and B expressed confidence he had made the correct identification when he observed David from the police vehicle. He made the identification shortly after he witnessed the crime, and explained that David (and his clothing and backpack) "matched" the perpetrator.

We also find unavailing David's reliance on B's later statement that he was not positive the juvenile arrested was the suspect. Generally, a witness need not be free from doubt as to the perpetrator's identity; the witness may testify it is his belief or opinion the accused was the perpetrator, and the lack of certainty in the identification goes to the testimony's weight. (People v. Mohamed, supra, 201 Cal.App.4th at p. 522.) Additionally, the evidence showed B was reluctant to testify because he was afraid of retaliation, particularly because his wife's car was vandalized after the incident at issue in this trial. A rational trier of fact could find his later-expressed doubt arose from this fear, rather than his ability to provide an accurate identification.

III. Possession of Graffiti Tools with Intent to Commit Vandalism or Graffiti

David next challenges the sufficiency of the evidence to support the true finding on the graffiti count. (Pen. Code, § 594.2.) Under Penal Code section 594.2, subdivision (a), "[e]very person who possesses . . . an aerosol paint container, a felt tip marker, or any other marking substance with the intent to commit vandalism or graffiti, is guilty of a misdemeanor." (Italics added.)

David concedes he possessed spray paint and a felt-tip marker when he was arrested. Thus, the only issue is whether there is substantial evidence he intended to use these items to create graffiti or commit vandalism. The intent element is rarely susceptible of direct proof, and generally must be inferred from the facts and circumstances of the case. (See People v. Park (2003) 112 Cal.App.4th 61, 68.) Specific intent may be proved by circumstantial evidence, and any reasonable inferences which may be derived from such evidence. (Ibid.) When determining intent, the factfinder can make inferences based on all the facts and circumstances in evidence. (Ibid.; see People v. Lindberg (2008) 45 Cal.4th 1, 27.)

Here, the responding police officer testified he found spray paint and a felt-tip marker in David's backpack, and that based on his extensive experience, those items are consistent with the type of items used to commit vandalism. The officer also said there was paint residue on the spray can tip, but said he did not test to see if the paint residue was wet and acknowledged that once a person has sprayed paint from a can, the paint residue will remain unless the can is cleaned. In other words, the paint residue does not reflect fresh usage. The officer also said he did not see any paint on David's hands or clothes.

This evidence was insufficient to support a reasonable inference that David intended to use the paint or felt-tip marker for graffiti or vandalism purposes. Because the statute requires more than possession, an intent to use cannot be inferred merely from possession. Otherwise, the statutory intent element would be unnecessary.

The Attorney General argues that David's intent to use the spray paint can be inferred from the fact that David was five miles away from home in an empty parking lot in the middle of the night with the spray paint and felt-tip marker, but no other art supplies. From these facts, the Attorney General argues the court could have reasonably found David "was planning on affixing some fresh graffiti upon some unadorned public space" and that "he was caught before he could realize his artistic ambitions."

The inference is speculative without additional facts to connect the paint supplies to facts showing usage or an intent to use. For example, there was no evidence showing the existence of any graffiti, ink, or paint in the nearby area or in the skate park where David had been "[h]anging out" several hours earlier, nor was there any evidence David had taken any steps to engage in vandalism or graffiti, such as taking the equipment out of his backpack. The proposed inference based on David's location is particularly speculative because the prosecutor's theory (found true by the court) was that David was in the parking lot late at night because he was fleeing from the crime scene.

In finding the prosecution proved the graffiti count beyond a reasonable doubt, the court referred to David's testimony that he had been painting his friend's skateboard. The court found this explanation was not believable and the false testimony supported an inference that David intended to engage in graffiti or vandalism. The Attorney General makes no attempt to suggest this defense evidence was of sufficient nature to provide grounds to infer David's intent to engage in graffiti or vandalism.

We need not decide whether this defense evidence together with the prosecution evidence supported the court's graffiti-count true finding because David moved to dismiss this count at the close of the People's case (§ 701.1), and the court denied the motion. Section 701.1 requires a court to dismiss the charges at the close of the People's case if the evidence presented by the People is insufficient to support a true finding for the alleged offense. (§ 701.1.) When considering a motion to dismiss, the juvenile court must weigh the prosecutor's evidence, evaluate the credibility of witnesses, and determine if the case against the minor has been proven beyond a reasonable doubt. (See In re Anthony J. (2004) 117 Cal.App.4th 718, 727.)

Although David's appellate briefing focuses mainly on his sufficiency of the evidence argument, he also states he is challenging the court's denial of his section 701.1 motion on the graffiti count. Additionally, even if David did not fully develop this argument, the "issue of the propriety of the denial [of the section 701.1 motion] . . . is inherent in [the minor's] appeal" and thus is properly before us. (In re Stephen P. (1983) 145 Cal.App.3d 123, 128.)

Without David's testimony (which we cannot consider in evaluating the court's section 701.1 ruling (see In re Stephen P., supra, 145 Cal.App.3d at p. 128)), the evidence is clearly insufficient to show beyond a reasonable doubt that David intended to use the paint supplies in his backpack to engage in vandalism or graffiti. There was no evidence to base a reasonable inference that David intended to use these supplies to commit vandalism or graffiti. The fact he possessed the items late at night is not sufficient to show an intent to use them. Thus, the court erred in denying David's section 701.1 motion on the graffiti count. (Pen. Code, § 594.2, subd. (a).) Accordingly, the graffiti count must be dismissed, and the true finding reversed on this count.

DISPOSITION

Judgment affirmed on count 1 (petty theft; Pen. Code, § 484) and count 3 (possession of drug/tobacco paraphernalia; Pen. Code, § 308). Judgment reversed on count 2 (possession of graffiti/vandalism tools with the intent to commit vandalism or graffiti; Pen. Code, § 594.2, subd. (a)).

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.